Thursday, 25 May 2006
Planning and Development (Strategic Infrastructure) Bill 2006 [Seanad]: Second Stage (Resumed).
Seán Fleming (Laois-Offaly, Fianna Fail)
Yes, it is long overdue.
There was previously provision but too much responsibility on the local authority. The onus now falls on the planning applicant to prove his or her bona fides, as is only right. That is good news buried in this important legislation. It is a special section not directly connected with the legislation's main business, but I wish to highlight it from that perspective. It is very important, and most people will be very pleased to hear of it.
The Bill's objectives include the following. Projects promoted by local authorities in their own areas will go straight to An Bord Pleanála on the basis the local authority, as a planning authority, should not be judge and jury in its own case. Large infrastructure projects such as motorways require an environmental impact assessment. Everyone would agree with that, and it brings me to a very important point.
We will very soon have to move to a system whereby all local authority developments go to a special section of An Bord Pleanála. There is no basis in natural justice for a housing section in a local authority to grant planning permission to its own planning section when the same directors of services sit around the table with each other every day of the week, and there is only one county manager. What is wrong with that system is that the public has no right of appeal to An Bord Pleanála.
People say day in, day out that the council has one rule for itself and one for others. We have all seen instances where planning permission has been refused for certain reasons. I have witnessed several cases of refusal because facilities might not be in place in a private development. However, if it is promoted by the county council, its own staff will pressure the planning department to say the development is needed for sewerage or social housing. If an application had come from an outside third party, it would not have been entertained; yet they regularly get through the system because the local authority is both promoting and adjudicating on them.
I know elected members also have a role in such matters, but it is very hard for them to stand up all of a sudden and oppose a development because infrastructure such as water and sewerage is not in place. They tend to give it the nod, and that creates problems for residents later. I would like a situation whereby no Government body or local authority making a planning application judges itself. That will have to be addressed at some point.
Under this Bill, development projects outside the normal planning system have a separate consent system, for example, railway lines, which would previously have been subject to consent procedures. Major infrastructure projects carried out by the private sector, a State-sponsored body or local authorities outside their area had to go through the normal, two-step planning process, but now they will go straight to An Bord Pleanála. Those arrangements are sensible, and people will be happy with them.
I wish briefly to highlight the details covered by the Bill. I will mention only the headings, since there might be some confusion among the public. Section 5 lists the types of projects that will now go directly to An Bord Pleanála, which include energy infrastructure projects such as oil refineries, terminals and power stations, and industrial installations whose output is more than 300 MW. Transport projects covered would include railway stations and lines.
Applications regarding the environment, the area about which the public is most concerned, such as waste disposal incinerators would go directly to An Bord Pleanála. I stress it will be only for facilities whose annual intake is greater than 100,000 tonnes. That is a very substantial incinerator and not the kind that would be proposed in local areas.
I think in particular of my own midland region, which has a waste management plan. There is provision for thermal treatment in all the regional plans, but I have always stated there is not the physical supply of waste in the midland counties of Laois, Offaly, Longford, Westmeath and north Tipperary to justify it, something confirmed in the legislation, which will apply only to facilities with an intake greater than 100,000 tonnes per annum.
There will be a few such incinerators around the country, but not in every county. Some claim the Bill will force them onto localities without public consultation, but they should consider the facts and the content of the legislation. There will inevitably be a few, but they will not pop up everywhere. It is important that those ready to join the scaremongering bandwagon examine the facts. We are talking only about extremely large incinerators. We will have the normal public consultation procedures in these matters, and it is welcome that they are continued in this legislation. There will be a strategic infrastructure division in An Bord Pleanála.
For the first time, there will be a formal legislative role for elected councillors. Up to now councillors could object to a particular aspect of a project and, while their objection was noted, they had no formal role. Now, within ten weeks from receipt of the application, the local authority can submit to the board a report setting out its views. The county manager will be required by law to submit the report to the members of the authority seeking their views on the proposed development, and the members of the planning authority may, by resolution, decide to attach recommendations specified in the resolution to the report of the authority where the members so decide these recommendations will be attached to the report submitted to the board.
This is an important new provision. It does not provide for a formal decision but there is now a mechanism by which elected members can have a formal legal impact on, and involvement in, the process. The views of the elected members of a local authority will now be formally taken into account by An Bord Pleanála, which did not happen heretofore. It is a little like the county development plan in that the manager's report must go before the elected members who can, by resolution, agree to it or make amendments to it.
Most of this legislation relates to projects which require environmental impact statements, EISs. The way we deal with EISs is a major issue. Despite my limited experience, I have severe criticisms to make of the quality of EISs submitted to local authorities. Many people submit minimum information in the hope it will satisfy the local planner. I have yet to meet a planner in my local authority who has been satisfied with an EIS. Planners must regularly write to applicants stating the EIS was insufficient and inadequate for reasons which they must specify. For example, the EIS might not deal with the human and environmental aspects or with every protected structure. I have yet to see a satisfactory EIS produced by the private sector.
The reason for some of the delays with major infrastructure is that we do not have the quality of people in the private sector to design some of the major projects properly. As I have seen with projects in the midlands, owing to the growing economy and the fact that everybody is stretched, we are bringing in consultants from the UK and much further afield to work on projects. It takes a great deal of time for these people to familiarise themselves with the situation in this country. Time and again, planners are very dissatisfied with the quality of EISs. That is a significant contributory factor to the delay in the planning process. The law or the planners are not the problem.
Perhaps planners should reject applications if they receive bad or poorly drafted EISs. If the application is bad, it is not the job of the local authority to coach the applicant how to get it right. The legislation provides for pre-planning discussions with the decision makers in An Bord Pleanála who can direct the applicants on the areas to be covered by an EIS. However, if one thinks about it, the people preparing an EIS should have the professional competence to do so and they should not have to go to the decision makers to ask what is required. If they know their job, they should know what is required. It is a little like a judge directing a solicitor on how he should put forward a client's case.
I hope the professional bodies involved in the preparation of EISs under the various headings will be quick to learn from each other's reports. Given that these are new infrastructural developments which we have not had in the past, perhaps these people do not have the expertise and it is necessary to bring in expertise from outside the country. However, many of the reports I have seen could have been done better in the first place. I hope An Bord Pleanála will give advice but will not have to coach applicants excessively on how to present a good application.
Another issue of emerging concern in regard to An Bord Pleanála is where there is a clear divergence between the inspector, who carries out the oral hearing, and the decision of the board. As a public representative, I find such divergences difficult to explain to people. This legislation states that the board can give the inspector directions on what he or she must consider as part of his or her oral hearing. It is at the discretion of the board whether to conduct an oral hearing. Perhaps it would be better if those directions were published in advance of the oral hearing so the public would know the parameters of the hearing, that the inspector's hands were, to a significant extent, tied or that the inspector had been told to examine the issues from the point of view of sustainable development in the area but to remember that the board would look at the broader national policy following his or her work at local level. That should be stated at the outset if the process is to be genuine.
We have all seen instances in our constituencies, in terms of major infrastructural projects and smaller private sector projects, where an inspector made one decision but the board made another. While the board provides a paragraph stating the reason for its refusal, it does not help the public's perception of An Bord Pleanála if the people it employs to do a job are overruled at the last minute for no apparent reason. The public finds it hard to accept it if an inspector holds an oral hearing in a local hotel for two to four days, or even three or four weeks in the case of some motorway projects, and his or her report is overruled by people who never left their offices in Dublin. The board might consider how it could be a little more consistent in how it does its work and publishes its decisions. This area needs to be tidied up.
We should not get too excited about that issue of fees to the board and to local authorities. It is all taxpayers' money and it involves taking money from the local authorities to give to An Bord Pleanála to cover its fees — taking money from Peter to give to Paul. It is of no great consequence in that it is taxpayers' money being expended by the local authorities and what of it if An Bord Pleanála must carry a cost and is not reimbursed by the local authority. While it might make for tidy book-keeping, it should not be a significant issue. We are only talking about moving a cheque from one State body to another.
I refer to the inspection of the files. Up to now, if the issue was being dealt with at local authority level, people could go to the local authority office and examine the file. If an application is made directly to An Bord Pleanála, I am concerned that people will have to travel to its office in Dublin. Its public office will have to be made much larger. I ask that the matter be clarified so that there is easy access for the public to the files during the course of consideration of a planning application. I hope the legislation is enacted as quickly as possible.